Family Law Case: Colucci v. Colucci
A case before the Supreme Court of Canada in 2021, Colucci v. Colucci, dealt with a complex family law matter dating back to 1998. The couple separated in 1996, after which their two children were residing with the mother full-time. The mother was granted full custody, and the father was ordered to pay $230 a week total in child support until 2012. By 1998, the father requested a reduction in child support payments, but did not provide supporting financial documentation.
The issue in court dealt with the arrears that had accrued since 1998 until 2016, where the father did not willingly pay the full sum of the child support, and was not actively involved in his children’s lives. The father brought a motion to “retroactively reduce” child support so that the $170,000 that the court found him to be owing would be rescinded. The judge decided to reduce the arrears to $41,642 due to the father’s change in income over the years.
The Court of Appeal disagreed with this decision and reverted the order to the original cost of arrears.
The Supreme Court of Canada dismissed the resulting appeal, stating that under s. 17 of the Divorce Act, quoted above, arrears can be retroactively reduced due to a change in income permitting that “effective notice” is given.
From the Court Document
Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. Effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation — it is not enough for the payor to merely broach the subject of a reduction of support with the recipient. The presumption that support will be reduced back to the date of effective notice strikes a fair balance between the certainty interests of the child and recipient and the payor’s interest in flexibility. While recipients should be aware that support varies with payor income, they are at an informational disadvantage. The recipient is entitled to rely on the court order or agreement in the absence of proper communication and disclosure by the payor showing a decrease in income that is lasting and genuine. While a drop in support can be presumed to have detrimental impacts on the child, ongoing communication and disclosure cushions those impacts and preserves the child’s best interests to the fullest extent possible. In the absence of effective notice of a drop in payor income, certainty and predictability for the child are to be prioritized over the payor’s interest in flexibility. The payor’s interest in flexibility comes to the forefront only once effective notice is given. The presumption provides payors with the certainty of knowing that any material change in income should be disclosed. The payor therefore has control over the date of notice and the date of retroactivity.
The court reaffirmed the importance of clear communication in motions of this nature, as well as taking into account the impact on the children. Overall, the court found that the father’s conduct, in refusing to make voluntary child support payments, showed bad faith, and that he did not produce enough support for his change in income claim.
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18909/index.do
Section 17 of the Divorce Act
- 17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
- (a) a support order or any provision of one, on application by either or both former spouses;
- (b) a parenting order or any provision of one, on application by
- (i) either or both former spouses, or
- (ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or
- (c) a contact order or any provision of one, on application by a person to whom the order relates.
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